1. The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights have been found to give special deference to the
sanctity of privacy in an individual's home.

2. The viewing by police into an area where an individual has a subjective expectation of
privacy that society accepts as reasonable constitutes a search.

3. The act of closing a venetian blind covering a window of a home is exercising a
reasonable expectation of privacy in the interior of the home. Under the facts of this
case, police viewing the interior of the home through a 4- x 5- inch opening in a closed
blind, absent a warrant, were conducting an illegal search.

4. The exceptions to the general rule that a person against whom a search warrant is
directed may not dispute the matters alleged in the supporting affidavits are stated and
applied.

5. The plain view doctrine only has application when there is a lawful initial intrusion.

6. The purpose of the good faith exception to the exclusionary rule is to deter police
misconduct and not to punish good faith reliance on a judge's mistake.

PADDOCK, J.: The State appeals the district court's order suppressing evidence
obtained pursuant to a warrant to search the home of Roger Morris.

The district court based its order primarily on the testimony of police officers who
were involved in obtaining the search warrant.

The officers testified that they had received information that Roger Morris was
involved with his brother Alan in the manufacture of methamphetamine at Alan's home.
Pursuant to a search warrant, officers did indeed discover evidence of a methamphetamine lab
in Alan's home.

Believing that drug evidence might also be found in Roger's home, Officer Flachsbarth
of the Lawrence Police Department and Special Agent Hutchins of the Kansas Bureau of
Investigation went to Roger's home to ask if he would consent to a search of his home. Upon
arriving at Roger's home, Flachsbarth and Hutchins walked up on the front porch and
knocked on the door. Receiving no response, Hutchins noticed there was a window that was
approximately 6 feet above the ground and 6 to 10 feet to the right of the front door. The
window was covered with a venetian blind with its slats closed. There was a 4- x 5- inch
opening in the blind where the slats were broken. Hutchins, standing on the bottom step of
the porch, looked through the hole in the blind to see if anyone was in the home. In order to
see through the opening, Hutchins had to lean out from the porch. From that vantage point,
he could see directly into the home through the opening in the blind. Hutchins observed
what he believed to be paraphernalia used in the manufacture of drugs.

Armed with this information, Flachsbarth and Hutchins told Officer Khatib what
they had observed, and Khatib prepared an affidavit for a warrant to search Roger's home.
Khatib had not been told that Hutchins had peered through a hole in a closed blind to make
his observations.

The warrant to search was supported by three statements that referred to Roger: (1)
the statement from two informants that Roger was involved in the manufacture of
methamphetamine, (2) a statement from an anonymous caller that Roger frequently visited
Alan's home where Alan manufactured methamphetamine, and (3) the observations the
officers made while looking through Roger's window.

The district court ruled that the search was unlawful because Roger had a reasonable
expectation of privacy in his home and by closing the blind, Roger had taken reasonable steps
to protect his home from public view.

The district court also concluded that without the observations of the two officers,
the other statements in the affidavit did not provide probable cause for a search because the
statements did not mention Roger's home or anything that could be found therein.

Without question, the judge that issued the warrant had probable cause to do so based
on the observations of the officers set out in the affidavit. The State embraces this argument
and points out the rule that a person against whom a search warrant is directed may not
dispute the matters alleged in the supporting affidavit, citing State v. Jensen, 259 Kan.
781, 787,
915 P.2d 109, cert. denied 519 U.S. 948 (1996). As with many rules, there is an
exception
where an attack on the affidavit is supported by allegations and an offer of proof under oath
that the affidavit contains (1) material statements of deliberate falsehood or reckless disregard
for the truth, or (2) deliberate omissions of material fact. State v. Colbert, 257 Kan.
896, 905,
896 P.2d 1089 (1995). Where, as here, information is omitted from an application for a search
warrant, it should be determined whether the omission was material and whether it rendered
the affidavit unreliable. State v. Cowdin, 25 Kan. App. 2d 176, 181, 959 P.2d 929,
rev. denied,
265 Kan. 887 (1998). In other words, would the judge in the instant case who issued the
search warrant have had probable cause to do so had he been informed of how the officer
viewed the interior of Roger's home. The judge who suppressed the evidence thought the fact
that the officer looked through a hole in the shade was material and if that fact had been
included within the affidavit, it would have rendered the affidavit unreliable. We agree.

The Fourth Amendment to the United States Constitution and Section 15 of the
Kansas Constitution Bill of Rights have been found to give special deference to the sanctity of
privacy in an individual's home. State v. Platten, 225 Kan. 765, 769, 594 P.2d 201
(1979). The
viewing by police into an area where an individual has a subjective expectation of privacy that
society accepts as reasonable constitutes a search. State v. Huber, 10 Kan. App. 2d
560, 566,
704 P.2d 1004 (1985). By having the blind closed, Roger demonstrated a subjective expectation
of privacy in his home. Such a demonstration of privacy is accepted by society as reasonable.
By peering through the hole in the blind, the officers were prying into an area that was
concealed. Further, the location of the window required that the officers had to lean over
from the steps in order to see through the hole in the blind. Their action, absent a warrant,
constituted an illegal search.

Other jurisdictions have faced similar fact patterns. In Lorenzana v. Superior
Court, 9
Cal. 3d 626, 108 Cal. Rptr. 585, 511 P.2d 33 (1973), the court held that a police officer's
warrantless observations through a window of a private home constituted an illegal search
and seizure. The window was on the side of the house where there were no defined doors and
walkways, and the officer peered through a 2-inch gap between the drawn shade and the
window sill. 9 Cal. 3d at 630. In Jacobs v. Superior Court, 36 Cal. App. 3d 489, 111
Cal. Rptr.
449 (1973), the court held that the officers conducted an unreasonable search and seizure
when they climbed onto a planter to look into a 2-inch aperture in a window which was
covered by drawn curtains and closed venetian blinds. Similarly, in Pate v. Municipal
Court,
11 Cal. App. 3d 721, 89 Cal. Rptr. 893 (1970), the court held that closed curtains
demonstrated a reasonable expectation of privacy and that a search where the officers climbed
onto a trellis to peer through a small crack in the curtains constituted an unreasonable search.
The Supreme Court of Hawaii also held that an officer's search was unreasonable where the
officer climbed on crates to peer through a 1-inch hole in the drapes and the blinds. State v.
Kaaheena, 575 P.2d 462 (Hawaii 1978).

On the other hand, the Court of Appeals of Idaho held that the police officer's
observations through sheer curtains of a mobile home were not an unreasonable search.
State
v. Clark, 124 Idaho 308, 859 P.2d 344 (1993). However, the officers did not have to climb
up
on something or lean over to see into the window, and the window covering was sheer.
These facts distinguish this case from the case at hand.

We find that the failure to inform the judge who issued the warrant that the officer
had looked through an opening in a drawn blind was a material omission that rendered the
application for the search warrant unreliable.

The State argues that the plain view doctrine is applicable here. We disagree. The plain
view doctrine only has application when there was a lawful initial intrusion. State v.
Reno,
260 Kan. 117, 122, 918 P.2d 1235 (1996). Such was not the case here. The initial intrusion was
unlawful.

Additionally, without the evidence viewed by the officers the affidavit for the search
warrant did not provide probable cause for the warrant to have been issued. The affidavit
must contain sufficient information to establish a fair probability that contraband or evidence
of a crime will be found in a particular place. State v. Ruff, 266 Kan. 27, 36, 967 P.2d
742
(1998). The statements that indicated that Roger may have been involved in the manufacture
of methamphetamine at his brother's home do not establish a fair probability that the
nefarious activity was also occurring at Roger's home.

Finally, the State argues that even if the warrant could not be justified on independent
probable cause, the good faith exception to the exclusionary rule rescues the evidence seized
under the warrant from exclusion. The good faith exception preserves evidence seized when
the police obtain a warrant in good faith that was mistakenly issued on less than probable
cause. United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405,
reh. denied 468
U.S. 1250 (1984). The purpose of the rule is to deter police misconduct, not to punish good
faith reliance on a judge's mistake. 468 U.S. at 916. Here, the judge who issued the warrant
was not informed of a material fact as to how the contraband was seen. The mistake was not
that of the judge, but instead was based on an illegal search. The good faith exception does
not apply.

The district court correctly suppressed the evidence obtained by an illegal search.